The process of environmental assessments (Environmental Impact Assessments EIA for projects and Strategic Impact Assessments SEA for policy, plans or programs) has many different forms and varies from country to country. It is often argued that in Australia regulations were too strict and, due to a long process, approval for a potential project was unnecessarily delayed while generating high costs for the proponent.
I argue that the process of an environmental assessment in Australia is not only inefficient but also ineffective.
Background: the key legislation for environmental protection and impact assessments in Australia is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It is binding for all states and territories. In 2009, in accordance with Section 522A of the EPBC Act, there was a review process for which a wide range of stakeholders were consulted. The review, which was carried out by Dr. Allan Hawke, identified various weaknesses and made recommendations for accordant changes to the EPBC Act. It understandably concluded that “the Act is currently too repetitive, unnecessarily complex and, in some areas, overly prescriptive. It needs restructuring to make it more accessible, easier to navigate and reduce the regulatory and resource burden on those impacted by the Act, requiring the recasting of many of its provisions”. It also found that “a majority – 56 per cent of respondents – considered that the Australian Government is doing too little” and that “the public has a higher expectation of the Government’s role in protecting the environment than is currently being delivered”.
When comparing the EPBC Act to guidelines and principles for environmental assessment best practices as suggested by IAIA for EIA and by OECD for SEA it is obvious that the EPBC Act misses the point of what the aim of an environmental assessment should be.
The missing point: as described on the website of the Department of Sustainability, Environment, Water, Population and Communities, the aim of the EPBC Act is to “promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources”. Environmental assessments are a tool that emerged in the 1970s – 1980s as a response to the then increasing destruction and over-exploitation of natural resources. It has the objective to help evaluating the impacts of a proposed project and to choose the best option between a range of possible outcomes (i.e. the approval of the project or its rejection and the preference for acceptance of a suggested alternative).
In Australia the legal framework contains too many voluntarily rather than mandatory elements and is thus not necessarily binding. Certain principles are not fully developed or made use of.
The ones that most deserve attention are two principles that have a significant impact on the approach and hence the integrity of the whole process as such: it is the lack of proper public participation and not enough room for possible alternatives to the proposed project.
Lack of public participation: Although public participation is required for project approvals under the EPBC Act, the way it is done is quite weak and only consists in an obligation for the proponent of a project to publish a draft report and to “invite the public to comment on” this draft report. In the case of strategic assessments, there is no legal requirement for public participation at all.
This is highly critical as regards the integrity of public participation. An integrative approach would require the public to be involved at a much earlier stage. As a comprehensive study related to public participation by Involve in the UK in 2005 has shown, it is very important that public participation is done at the right moment and in the right form. What public participation under the EBPC Act means, is that the public is asked to approve an already taken decision. This is done by the possibility for the public to provide feedbacks to the published draft environmental report. These feedbacks can then either be considered or not when the Minister makes the final decision of whether to approve the project or not.
It is evident that this is not a democratic approach and is neither integrative nor serious.
The review by Allan Hawke recommended that the Minister should encourage public participation in matters related to environment protection and to “promote the Indigenous people’s knowledge of biodiversity”. It also found that there should be better integration of the public by joint assessment panels or public inquiry for bigger projects or where the project proponent was a state or the government. It further recommended extending the public comment period from 15 (on the draft terms of reference) and 40 (on the draft report) to 60 business days.
Insufficient room for alternatives: one of the fundamental elements of an environmental assessment is the consideration and assessment of accordant alternatives, the most logical and thus standard one being the “alternative on taking no action”. It is further imperative that all alternatives are assessed for their environmental impacts and compared to each other. Only then it is possible to make an objective decision as regards the best option.
Under the EPBC Act there is no legal requirement to consider and/or assess alternatives, although it is often required by the guidelines provided by the Minister.
It is clear that if there is not enough room for alternatives, the environmental report is highly biased towards the approval of the project! If there are no alternatives (or if they are not properly assessed), the public can only comment on the project but cannot compare it to other outcomes. Usually, opponents would bring in some concerns during the public comment period, but what more can they do under such circumstances?
Lack of alternatives is a manipulation of the outcome that only has one goal: the approval of the project. The review of the EPBC Act suggested including a mechanism that allows the Environmental Minister to ask for information on alternatives to the proposed project.
The consequence: you can’t stop a running train: consultation rather than integration of the public coupled with late rather than early participation in the process does not really respect the principles of public participation. As a consequence, it doesn’t allow for a fair process because it clearly focuses on approval of a project by the public rather than the development of a real dialogue with the public. Additionally, the lack of accordant room for alternatives and their assessment further increases the likelihood that the whole assessment process is biased towards approval of a proposed project. And the longer the process takes, the more granted its approval becomes, due to the already invested time and money. Because an irresponsible and unwanted project is not stopped at an early stage and, instead, undergoes the costly process of an assessment, later concerns are often ignored or underrated.
A good example for a unsustainable and thus irresponsible project is a proposal for an Ayers Rock Resort Golf Course Development. There are justified concerns (unsustainable exploitation of aquifers; desert erosion; negative impacts for native plants and salt levels; expected under-use of the premises) as regards the project and the pre-assessment makes clear that the proposed project is irresponsible. So why proceed and go through the whole assessment process? Why not rejecting the proposal at this stage?
If the public would be integrated at the beginning of the process, then an unwanted project could immediately be rejected, avoiding unnecessary costs for the proponent, the public, the government and the environment. And critics who argue, that environmental assessment procedures in Australia were over-regulated would soon find that it is the lack of understanding of general principles and a wrong approach that makes approvals long and costly, not an over-regulation.
In conclusion we can say that environmental assessment procedures in Australia (as in so many other countries) do not meet the goal to provide a tool for an objective evaluation of the best option in terms of a proposed development. Environmental legislation (i.e. the EPBC Act) definitely needs some modifications and the public a stronger role if we strive for a sustainable development.
 There are certainly others than the ones mentioned here, but all show similar outcomes
 It should be noted that a serious and objective assessment usually requires in situ investigation, already causing impacts on the environment